R v Afu; R v Caleo (No 10)

[2018] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:	R v Afu; R v Caleo (No 10) [2018] NSWSC 189
Hearing dates:	13 February 2018
Decision date:	13 February 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	A certificate pursuant to s 128(5) of the Evidence Act to be provided by the Court
Catchwords:	CRIMINAL LAW – evidence – privilege against self-incrimination – where witness to give evidence in respect of two murders – where witness involved in events related to murders – where witness to be asked about other criminal activity – where reasonable grounds for objection – where in the interests of justice that witness be called – order that certificate to witness be provided
Legislation Cited:	Evidence Act 1995 (NSW) s 128
Category:	Procedural and other rulings
Parties:	Regina Alani Afu Mark Richard Caleo
Representation:	Counsel: Ms M Cunneen SC (Crown) Mr R Wilson (Afu) Mr G Brady SC with Ms R Khalilizadeh (Caleo) Mr A Bellanto QC (Stambolis) Solicitors: Solicitor for Public Prosecutions Peter Katsoolis & Co William O’Brien & Ross Hudson Solicitors Maksisi Lawyers
File Number(s):	2014/321700; 2015/34389

Judgment

1. HIS HONOUR: Anthony Stambolis is a prosecution witness in the trial of Mark Richard Caleo and Alani Afu in respect of charges arising from the murder of Dr Michael Chye at Woollahra on 16 October 1989 and Ms Rita Caleo at Double Bay on 10 August 1990.

2. Mr Stambolis has been interviewed and has provided a number of statements to police in the past, many but not all of which have been under an inducement that anything he said would not be used against him (except in proceedings that might arise in respect of the falsity of anything he said).

3. Briefly stated, Mr Stambolis is being asked to give evidence about his knowledge of and involvement in certain events relating to the two murders. It is anticipated that he will be cross-examined by counsel for each accused in relation to those matters and in relation to matters relevant to his credibility which will likely include questions about his involvement in other criminal activity.

4. Mr Stambolis objects to giving any evidence on the ground that it may tend to prove that he has committed an offence against or arising under an Australian law. For this reason, s 128 of the Evidence Act 1995 (NSW) applies.

5. It is first necessary for me to determine whether or not there are reasonable grounds for the objection. Having read many of the statements and transcripts of interviews referred to above, I am satisfied that there are such reasonable grounds.

6. Having regard to the importance of the evidence of Mr Stambolis to the prosecution case against each accused (in fact it appears to be vital) I am satisfied that it is in the interests of justice to require him to give the evidence. In relation to matters that may arise in cross-examination as to his credit it is also in the interests of justice that he be required to answer questions as to such matters even though such answers may tend to incriminate him. The importance of Mr Stambolis' evidence to the prosecution equally gives rise to an importance of his credibility being explored in cross-examination to the fullest extent that the law permits.

7. Mr Stambolis will be provided with a certificate under s 128 as is required by s 128(5). It is necessary that he be informed that such a certificate will be provided and of the effect of such a certificate: s 128(3)(b) and (c).

8. The effect of a certificate provided by the Court under s 128(5) is set out in s 128(7):

"(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:

(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence."

9. Mr Stambolis has been informed of that provision. I am satisfied that he understands it, given that he is represented and has been advised by an experienced solicitor and a very able Queen’s Counsel.

10. The following orders are made:

Anthony Stambolis is required to give evidence in the trial of Mark Richard Caleo and Alani Afu of his knowledge of and involvement in events relating to the murders of Dr Michael Chye at Woollahra on 16 October 1989 and Ms Rita Caleo at Double Bay on 10 August 1990.

Anthony Stambolis is also required to give evidence as to his involvement in any other criminal activity as required by questions that may be asked in cross-examination or re-examination in relation to the general issue of his credibility and reliability.

A certificate pursuant to s 128(5) is to be provided by the Court.

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Decision last updated: 19 April 2018